Copyright (c) 2003 Sports Lawyers Journal

Sports Lawyers Journal

 

Spring, 2003

 

10 Sports Law. J. 97

 

LENGTH: 18089 words

 

ARTICLE: The Antitrust Issues of NCAA College Football Within the Bowl Championship Series

 

Mark Hales*

 

* B.S., Planning and Resource Management, 2000, BYU; J.D. candidate 2003, BYU Law School. I would like to thank all those with whom I spent hours talking about sports, and particularly College Football and this Article.

 

SUMMARY:

  ...  “Rise and Shout, the Cougars are out” of the Bowl Championship Series (BCS), thus they have no chance to win a National Championship. ... In addition to the four conference champions, the Bowl Alliance had two “at-large” slots “open to any team in the country with a minimum of eight wins or ranked higher than the lowest-ranked conference champion of the four Alliance conferences.  ...  As previously stated, the pool shall first consist of the champions of the BCS conferences and any team which won at least nine regular season college football games (not including wins in exempt games) and ranked in the top twelve of the final BCS standings. ...  Nebraska lost to Big 12 Champion Colorado 62-36, which resulted in Nebraska being ranked fourth by both the media and coaches poll behind Miami, Oregon, and Colorado. ... (1) A postseason playoff system that will determine an undisputed National Champion on an annual basis; ...  The first concern is that a playoff will not guarantee a match-up of the “top two teams in the nation each year, since upsets might commonly allow a lower-ranked team to advance over a higher-ranked opponent in the playoff. ...  Under the current bowl format, only one bowl game determines a National Champion. ...

 

TEXT-1:

  [*98]

 

   I. Introduction

 

“Rise and Shout, the Cougars are out”[1] of the Bowl Championship Series (BCS), thus they have no chance to win a National Championship. As the Brigham Young University (BYU) Fight Song says, BYU and every other non-BCS school are barred from competing for a national title because they are not within one of the six elite BCS conferences. 

 

Under the current BCS regime, six football conferences, four bowls, and one network have essentially prevented all other football conferences and teams from participating in the National Championship. Under the current established formulas, BCS schools are automatically qualified for a BCS game while non-BCS schools are practically barred from entry. Due to horizontal and vertical arrangements between bowls and conferences, the antitrust laws of the Sherman Act are significantly violated.

This Article will first address the history of the National Collegiate Athletic Association (NCAA), college football bowl games, and the BCS. Second, antitrust law will be explained. Finally, the BCS will be analyzed under per se and rule of reason analysis and the less restrictive alternatives of two playoff formats under a new simplified ranking system will be proposed.

 

   II. Overview

 

   A. The History of the NCAA

 

The NCAA was formed in 1906,[2] as a result of President Theodore Roosevelt’s concern over the high number of injuries and deaths in college football.[3] Along with establishing safety guidelines, the NCAA  [*99]  was developed to establish a consistent set of rules to prevent cheating and rough play.[4]

The NCAA’s mission and purpose is to “maintain intercollegiate athletics as an integral part of the education program and the athlete as an integral part of the student body.”[5] To fulfill this mission, the NCAA is guided by three rules that are relative to this Article and the antitrust effects of the BCS. These three goals are: to promote intercollegiate athletics, administer National Championships, and maintain integrity and standards of fair play.[6]  The NCAA professes to “encourage participation in and support for intercollegiate athletics by celebrating the accomplishments of the student-athlete and promoting NCAA championships and college sports; with the first goal of promoting intercollegiate athletes.”[7]  The NCAA provides “student-athletes with opportunities to compete at the highest level of intercollegiate athletics.”[8]  Finally, by administering a National Championship, the NCAA has the goal “to support effective institutional management and integrity in intercollegiate athletics through compliance with, and enforcement of, standards of fair play and appropriate conduct for student-athletes and institutional representatives.”           [9]

            The NCAA consists of Divisions I, II, and III.[10]  Membership in each division is determined by the number of sports the school sponsors, the average attendance for home games, and the number of home games played.[11]  College football is unique, because it is further divided into two subdivisions: Division I-A and I-AA.[12] Additional requirements are necessary for a Division I-A school. Division I-A is comprised of eleven conferences and seven independent teams.[13]  Schools align themselves  [*100]  into conferences to operate more efficiently, which includes cooperative scheduling, negotiation of television contracts, and other similar endeavors.

The NCAA has conducted National Championships in various sports since 1921[14] and currently administers eighty-seven championships in twenty-two sports for its member institutions.[15]  The NCAA has sponsored football championships for many years in all three NCAA divisions except Division I-A[16] where independent bowls have traditionally invited specific teams to play in post-season games. However, the NCAA established the specific criteria and standards for post-season competition on the field. Yet, these requirements only involved a cooperative relationship and not a legally binding agreement.[17]  Under the direction of the NCAA’s Special Events Committee, the NCAA developed bowl polices concerning minimal financial distributions among participating teams, team eligibility, officiating, game dates, ticket sales, and bowl names.[18]

 

Absent NCAA administration of Division I-A football, various post-season bowl games, polls (generated by sports writers, selected NCAA head football coaches, and computers), and recent affiliations have been used to determine the national champion. This selection process composed of various opinions and biases of individual teams and conferences, has led to the manipulation and corruption of college football. The current National Championship scheme is the BCS.

 

    [*101]

 

   B. NCAA Division I-A College Football Bowl Games

 

The first bowl game occurred on New Year’s Day of 1894, when, in order to generate civic support,[19] the University of Chicago played the University of Notre Dame.[20]  The next bowl game did not occur until 1902, when the University of Michigan played Stanford University in the first Rose Bowl.[21]  Various bowl games have since been created and disbanded throughout the years;[22] currently there are twenty-five bowls.[23]

 

With the increasing financial success of bowl games, independent businesses began sponsoring the games and independent governing committees were organized to select the participating football teams.[24]  Bowl sponsorship changed the focus from rewarding the student-athletes to financially rewarding the sponsoring corporation.[25]  In 1990, the John Hancock Bowl[26] received an estimated $ 5.1 million worth of advertising exposure in exchange for their $ 1.6 million sponsorship contribution. A representative from John Hancock said, “the bowl is an extraordinarily efficient media buy. It would cost us a great deal more money to help influence sales by normal advertising.”[27]  Today, every bowl has a sponsor who makes payments to the bowl organization for permission to advertise with bowl logos and trademarks.[28]

 

    [*102]  Initially, each bowl negotiated participation agreements with individual teams. Eventually some of these agreements gave way to multi-year contracts with certain conferences for a specifically ranked team from the conference. For example, the champions of both the Pac 10 and Big 10 were obligated to participate in the Rose Bowl.[29]  Other bowls chose to remain free to negotiate with any team which led essentially to a bidding process where available teams would choose between multiple bowl invitations.[30]

 

With many conferences and teams tied to specific bowls, it became difficult to decide who had won the national title. Rarely did these vertical contracts[31] produce a National Championship game between the two highest ranked teams. Rather, the strongest teams were dispersed among multiple bowls, and the national title was often split between two teams. Under this independent bowl system, the top two teams met each other in a bowl only nine times.[32] Split championships occur when different recognized polls declare separate teams the national champion. Using only the Associated Press (AP) and the Coaches Poll, the national title has been split ten times since 1950.[33]  However, when using all recognized polls, the number of split champions increases to forty-four during the same period.[34]  Thus, there has been a consensus “national champion” only seven times in over fifty years in Division I-A football.

 

There continues to be contention within the NCAA about post season play for Division I-A football.[35]  The NCAA states that it is concerned with the potential negative effects of a playoff system, such as the disruption of student-athletes from their studies, academic calendars, lengthening of the season, increasing the pressure to win, and the  [*103]  negative effect on the  bowl games.[36]  Despite most of these concerns, the NCAA’s Division I-AA, Division II, Division III, and other college athletic associations, namely the National Association of Intercollegiate Athletics, have successfully established championship games through a playoff format.

 

   C. The Establishment of the BCS: The Bowl Coalition and Bowl Alliance

 

Until the early 1990s, the process of selecting football teams for bowl games was disorganized and often chaotic.[37]  To remain competitive in attracting marketable teams, bowls often selected schools prior to the conclusion of the season, frequently as early as mid-October.[38] In some situations, bowls made informal arrangements prior to the season with a particular team based on historical success or the notoriety of a particular coach.[39]  These early selections frequently led to mediocre teams playing in historically attractive bowl games and rarely matched up the top two teams in the nation. Within the past decade alone, four different systems have attempted to create the marketable product of a true National Championship.

 

   1. The Bowl Coalition

 

 The current BCS is the heir of similar associations. The first attempt to organize bowl selection began in 1992 with the Bowl Coalition.[40]  Under the Bowl Coalition, the champions of the Southeastern Conference (SEC), Southwestern Conference (SWC),[41] Big Eight,[42] Atlantic Coast Conference (ACC),[43] and the newly created Big  [*104]  East[44] joined with the Fiesta, Cotton, Orange, and Sugar Bowls.[45]  Under the Coalition, the champions of the SWC would play in the Cotton Bowl, the SEC in the Sugar Bowl, and the Big Eight in the Orange Bowl, while the Fiesta Bowl received two open bids. These four bowls agreed to select other teams from among the champions of the ACC, Big East, Notre Dame, and any additional teams that were “attractive and had completed their season with exceptional records to fill the remaining open slots.”[46] Although the Bowl Coalition could not guarantee a “national title game,” [47] after two years of a split title,[48] in 1992, the Coalition produced a national title game between Big East champion Miami University and SEC champion University of Alabama, and again in 1993 between Florida State University[49] of the ACC and the University of Nebraska of the Big Eight.[50]

 

   2. The Bowl Alliance and Super Alliance

 

With the success of the 1992 and 1993 seasons and the expiration of several bowl/conference contracts after the 1994 seasons, the Bowl Alliance was organized to improve the chances of a National Championship game.[51]  All NCAA-certified bowl games were invited to  [*105]  submit bids to establish a bowl base for the new Alliance.[52]  The Bowl Alliance selected the Orange, Sugar, and Fiesta Bowls[53] on the condition that these bowls would relinquish their contractual obligations with their respective conferences.[54]  Because traditionally successful bowls and conferences had to abandon their financially attractive relationships, the champions of the ACC, Big East, Big Twelve, and SEC received automatic bids to a Bowl Alliance game.[55] 

In addition to the four conference champions, the Bowl Alliance had two “at-large” slots “open to any team in the country with a minimum of eight wins or ranked higher than the lowest-ranked conference champion of the four Alliance conferences.”[56] In selecting at-large teams, preference was given to Notre Dame, the nonchampions of the Pac-10 and Big-Ten conferences, and the remaining members of the Alliance conferences.[57]  However, if any at-large team outside the Alliance was ranked Number 1 or Number 2, it was guaranteed a slot in the National Championship game. Under the Alliance format, the mythical championship game would be rotated every year between the three Alliance bowls.[58]  When an Alliance bowl hosted the title game that bowl would get the Number 1 and Number 2 teams. The remaining bowls were allowed to swap picks to attractively fill their games.[59]

 

In an attempt to increase the success of producing a National Championship game, the Alliance expanded in 1996 to become the “Super Alliance” by including the Rose Bowl and the champions of the  [*106]  Pac-10 and Big-10 Conferences.[60]  Other arrangements were made with the Western Athletic Conference and Conference USA, in which participation fees were to be paid to each conference in the event that these conferences were underrepresented in the alliance.[61]

 

An important factor in the Bowl Alliance was the financial benefit of being selected to a Bowl Alliance game. In the 1996-1997 bowl season, the Alliance bowls “paid out a total of $ 67.9 million to eight teams, while the combined total from all non-Alliance bowl purses was only $ 34 million.”[62] These payments to participating teams were divided equally between the six participating schools, which was further divided among the conference members of the schools. Independent schools were able to keep their 1/6 share.[63]  For that year alone, “the total payout to Alliance schools for that same season was $ 95.9 million, while the non-Alliance bowl schools received $ 5.4 million in payouts.”[64]

 

   D. The Current System: The BCS

 

The next transformation into the BCS began in 1998, with the restructuring of the selection process of the National Championship game and other significant bowl games.[65]  The BCS, which runs through the 2006 bowl season, consists of the same four bowls of the Super Alliance[66] with each bowl hosting the National Championship game once every four years.[67] [*107]

 

   1. Selecting Teams for a BCS Bowl Game

 

As with the previous bowl organizations, the champions of the ACC, Big East, Big Ten, Big 12, Pac-10, and the SEC are guaranteed participation in a BCS bowl game.[68] This automatic selection of the original BCS conference champions is subject to review, and possible loss of automatic selection by the BCS, should the conference champion not have an average ranking of twelve or higher over the past four years.[69]

 

Previous regional considerations are used when the nonchampionship BCS bowls select their teams from these conference champions.[70]  In respecting former bowl affiliations, regional consideration includes the ACC and Big East champions in the Orange Bowl, the SEC champion in the Sugar Bowl, the Big Ten and the Pac-10 champions in the Rose Bowl, and the Big 12 champion in the Fiesta Bowl.[71]  These regional tie-ins may be avoided when:[72]

 

(1)   the same team hosting the same BCS Bowl for two consecutive years,

(2)   two teams that played against one another in the most recently completed college football season will be paired against one another in a bowl,

(3)   the same two teams would play against each other in a Bowl game for two consecutive years, and

(4)   an alternative pairing would have greater appeal to college football fans.

 

When a regionally tied in team is not selected and the BCS game needs to select a replacement team, that bowl can choose from the final BCS pool of eligible teams.[73] As previously stated, the pool shall first consist of the champions of the BCS conferences and any team which won at least nine regular season college football games (not including wins in exempt games)[74] and ranked in the top twelve of the final BCS standings.  [*108]  With the remaining two at-large spots, the BCS is generally not required to select any particular team, but in some instances, any at-large team may earn automatic selection. Those cases are listed below:[75]

 

(1)   any At-Large team ranked No. 1 or No. 2 in the final BCS Standings shall play in the BCS National Championship Game. If both the No. 1 and No. 2 teams in the BCS Standings are At-Large teams, those teams shall play in the National Championship game;

(2)   any team from a non-BCS conference or an independent institution, which is ranked three through six in the BCS Standings, shall qualify for a guaranteed selection in one of the BCS games. If one or more teams other than Notre Dame qualify for automatic selection, Notre Dame shall also qualify provided it is ranked in the top ten in the BCS Standings or has a record of at least nine wins, not including exempted games;

(3)   the Bowls shall select from those teams that qualify in (2) above should insufficient slots be available;

(4)   if any At-Large slots remain unfilled after satisfying the criteria in (2) above; and the team ranked three in the BCS Standings is an At-Large team, then the team ranked three in the BCS Standings shall automatically fill one At-Large slot and shall play in one of the BCS Bowls;

(5)   if any At-Large slots remain unfilled after satisfying the criteria in (2) and no at-large team qualifies for automatic selection under (4) above; and the team ranked four in the BCS Standings is an At-Large team, then the team ranked four in the BCS Standings shall automatically fill one At-Large slot and shall play in one of the BCS Bowls.

 

The requirements to receive an automatic bid to a BCS game are significantly more stringent for non-BCS conference champions and independent schools than for BCS conferences and schools. The non-BCS conferences (Mid-American, Mountain West, Sun Belt, Western Athletic, and Conference USA) and independent teams, excluding Notre Dame, will be guaranteed a slot in a BCS game only if their teams are ranked sixth or higher in the final BCS standings, unless more than two non-BCS teams meet these criteria. If three or more non-BCS schools are ranked in the top six of the BCS standings, the BCS bowls will only choose two teams from that group. In comparison, at-large teams within the BCS conferences only need to be ranked anywhere in the top twelve.  

 

 [*109]

 

   2. How the BCS ranks Division I-A Schools

 

The National Football Foundation and College Hall of Fame have compiled the BCS standings since the 2000 regular season.[76] The ranking system consists of five major components: subjective polls of the writers and coaches, computer rankings, schedule strength, a team’s record, and quality wins versus top fifteen ranked teams in the weekly BCS standings.[77] The two teams with the lowest point total in these categories will play in the National Championship game.[78]

 

The poll component is based on each team’s average ranking in the Associated Press (AP) poll and the USA Today/ESPN Coaches poll.[79] The ranking for each team in both polls is added and divided by two.[80]  For example, a team ranked number three in one poll and number five in the other poll would receive 4.0 points in this component (3+5 = 8/2 = 4.0).

 

The second component consists of eight computer rankings, which are published in major media outlets. The computer rankings are: Jeff Sagarin[81] (published in USA Today), Jeff Anderson/Chris Hester (Seattle Times),[82] Dr. Peter Wolfe,[83] Richard Billingsley,[84] Wes Colley,[85] Kenneth  [*110]  Massey,[86] David Rothman,[87] and Matthews/Scripps-Howard.[88]  The computer component is determined by averaging the six intermediate computer rankings, disregarding the highest (best) and lowest (worst) rankings. For example, if a team is ranked first in four polls, second in three polls and third in another, one of the rankings in which the team is ranked first and the ranking in which the team is third will be disregarded and the remaining six polls will be added and divided by six (1, 1, 1, 2, 2, 2 = 9/6 = 1.50).

 

The third component is the team’s strength of schedule, calculated by determining the cumulative win/loss records of the team’s opponents and the cumulative win/loss records of their opponents’ opponents.[89]  The formula shall be weighted two-thirds (sixty-six percent) for the opponent’s record and one-third (thirty-three percent) for the opponents’ opponents record. The team’s schedule strength shall be calculated to determine in which quartile the team will rank: 1-25, 26-50, 51-75, or 76-100. The rank shall be further quantified by its ranking within each quartile (divided by twenty-five).[90]  For example, if a team’s schedule strength rating is 30th in the nation, that team would receive 1.20 points (30/25 = 1.20).

 

The fourth component is the team’s record. This component shall evaluate the team’s win/loss record. Each loss during the season will represent one point in this component.[91]

 

Finally, the quality win component reduces a team’s BCS ranking by a sliding scale for victories against opponents ranked among the top fifteen in the weekly BCS standings.[92]  A defeat over the number one rated team is a reduction of 0.15 points, while a defeat over the number fifteen rated team is a reduction of 0.01 points. If a team defeats a top fifteen BCS team twice in one season, the victorious team shall receive quality win points only once.[93]  If a team fails to remain in the top fifteen,  [*111]  any team that beat them fails to receive the quality win component unless they return to the top fifteen.

 

To calculate the standings, all five components are added together. The team with the lowest point total is ranked first in the BCS Standings, the second lowest will be ranked second, and so forth.[94] These two top teams then meet in the championship game. Under the structure of the BCS, the National Championship went to Miami in 2001, the University of Oklahoma in 2000, Florida State in 1999, and the University of Tennessee in 1998.[95]

 

Early success of the BCS was evidenced by an increase in television audiences. In 2001, the four BCS bowls combined to reach a record television audience of 127 million viewers.[96] The average attendance for the games was 77,765 with overall attendance for bowl games increasing by 7.6% to 1,291,557.[97]

 

   3. Financial Benefits of BCS Participation

 

As with the previous Bowl Alliance, the participating institutions receive a substantial financial payout by playing in a BCS game. Under the current BCS format for the 2001-2002 season, the BCS participants received between $ 11.78 and $ 14.67 million depending on the conference affiliation of the at-large participants.[98]  Should the at-large participants come from outside the original BCS conferences, those participants will receive $ 11.78 million.[99]  If one or both at-large selections come from within the original BCS group, the first conference participant shall receive $ 11.78 million and the second participant from that same conference shall receive $ 6 million.[100]  This is different from previous BCS seasons, where all participants received the same financial payout. The total money received is then split among all the teams within the team’s conference.[101]

 

    [*112]

 

   E. Overview of Antitrust Law

 

Modern antitrust law commenced in 1890 with the passage of the Sherman Antitrust Act.[102]  The Sherman Act protects and promotes the competitive process of the American open marketplace by maintaining an opportunity for market access and promoting market rivalry.[103] The first section of the Sherman Act prohibits acts by two or more people that restrain trade in interstate commerce, while the second section bars monopolistic activities.[104]  The most distinctive feature of a monopolized market is a barrier of entry.[105]

 

A plaintiff must have standing to bring an antitrust suit. Standing arises out of 4 of the Clayton Act.[106]  To determine if the plaintiff has standing, the courts will ask three questions. First, is the plaintiff a person under the meaning of 4?[107]  Second, has there been an injury to the plaintiff’s business or property?[108]  And third, and most complicated, did the injury arise “by reason of” the antitrust violation?[109]

 

Once a potential antitrust claim has been raised and standing exists, the implication is analyzed under either “per se” or “rule of reason.”[110]  Under per se analysis, activities are condemned as a matter of law, without inquiry into their reasonableness, because the substantial  [*113]  likelihood is that such activities are anticompetitive.[111]  This strict approach has been used in “situations where the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output of a product.”[112]  The Supreme Court has ordinarily reserved the per se approach to those instances involving price-fixing,[113]  tying arrangements,[114] division of markets,[115] and group boycotts.[116]  A group boycott occurs when several competing entities agree to isolate others.[117]  Upon showing of a per se violation, liability is automatic and the court then determines the loss suffered by the plaintiff. A second factor is the type of restraint applied. Horizontal restraints, which injure competitors at the same level of production are treated more frequently as per se illegal.[118]  Vertical restraints are generally treated under the rule of reason, because they usually only affect parties at different levels of production.[119]

The Supreme Court first defined the rule of reason approach in Board of Trade of City of Chicago v. United States.[120]  When the violation is not patently anticompetitive, the courts are required to evaluate the effect of the behavior on the competitiveness of the market by the rule of reason analysis. The courts have developed a three-prong test to analyze rule of reason questions.[121] First, the plaintiff bears the initial burden of showing that the restraint creates actual anticompetitive effects. These anticompetitive effects can occur when an “agreement concentrates market power to participants in such a way as to eliminate competition,  [*114]  and can be evidenced by higher than competitive prices, lower than competitive quantity or quality of goods, or both.”[122] After the plaintiff has proven anticompetitive effects, the burden shifts to the defendant to show that the challenged anticompetitive effects create procompetitive benefits.[123] If the defendant can prove procompetitive benefits, the burden shifts back to the plaintiff to show that the “particular restraint is not reasonably necessary to accomplish the stated goal,” or that the same benefits could be obtained through a lesser restrictive means.[124]

 

   III. How the BCS Violates Antitrust Law

 

After careful review, it is clear that the BCS violates antitrust laws. Under antitrust law, “anytime we see a group of competitors, such as the conferences, agreeing with each other instead of competing with each other, that is a potential antitrust problem.”[125]  In the area of sports, antitrust issues arise in professional or amateur sports leagues, when owners, school presidents, or conference commissioners make agreements amongst themselves that result in uncompetitive activity.[126]  Within the BCS, these types of arrangements are occurring.

 

This Article will analyze the BCS under per se and rule of reason analysis. First, horizontal contracts within the BCS that create artificial barriers of entry for non-BCS teams will be evaluated under the per se analysis. Second, the vertical contracts between BCS conferences, teams, and networks will be examined. To encourage productivity and competition, this Article will present two less restrictive alternatives to the BCS will be presented.

 

   A. Per Se Analysis

 

Although the Supreme Court disfavors using the per se analysis, the lenient rule of reason approach “is inappropriate where the purpose of  [*115]  the regulations is to eliminate business competition.”[127]  Per se review would be especially evident “where the underlying facts demonstrate that business-minded entities acted with the clear intent to exclude [non-BCS] bowls and [non-BCS] teams from multi-million dollar opportunities.”[128]

 

The apparent boycott of non-BCS teams created by the BCS warrants per se analysis.[129] “The hallmark of the unlawful “group boycott’ is the effort of the competitors to barricade themselves from competition at their own level.”[130]  Within the horizontal agreements of the BCS a boycott, and thus a monopoly, has been created. The BCS is “an illegal restraint of trade and an illegal conspiracy to monopolize.”[131] In essence, the BCS boycotts nearly fifty

 NCAA Division I-A college football teams from competing for a National Championship.

 

Based on the current BCS format, one of the major barriers of entry is a team’s strength of schedule. To prevent the entry of non-BCS schools into the market for a National Championship, BCS teams can beat any team and improve its strength of schedule, while non-BCS teams have to beat highly ranked BCS teams to improve theirs. So, because every non-BCS school plays the majority of its games against other non-BCS schools, non-BCS school’s strength of schedule continue to be sub-par. Even if a non-BCS team played a majority of BCS schools, their strength of schedule would still prevent access to the BCS. For example, if BYU played BCS opponents Miami, University of Florida, Tennessee, Nebraska, Duke, Vanderbilt University, University of Oregon, University of Colorado, and University of California and non-BCS opponents The Naval Academy, University of Idaho, and University of Houston, BYU would still have a strength of schedule of 91st,[132] a schedule too “weak” to ever be able to participate in a

 BCS bowl game. Though the strength of a team’s opponents is a factor in determining a team’s ability, it should not be the decisive factor. A team schedules its opponents years in advance and has no control over how those teams will play in any given year. If a non-BCS team schedules three BCS conference champions eight years in advance, and eight years later these  [*116]  same BCS teams have a poor year, the non-BCS team is criticized for having a weak schedule. The fact that in every year of the BCS’s existence, a non-BCS team had a significantly better win/loss record over several BCS teams playing in a BCS game is evidence that the BCS boycotts non-BCS teams.[133] Despite what the BCS claims, it will continue to reward BCS teams for playing weak opponents within a BCS conference, and punish non-BCS teams for playing teams not ranked high in the BCS standings.

 

The BCS conferences believe that any team in their conference is a significantly stronger football team than any non-BCS team, because non-BCS teams never play a challenging schedule, and can easily go undefeated by playing only non-BCS teams. However, in the past eight years, statistics have shown that it is actually more difficult to obtain an undefeated regular season in a non-BCS conference. Since 1994, there have been sixteen undefeated teams from the BCS conferences, and only three undefeated teams from the non-BCS conferences.[134]  The BCS coalition has fifty-three percent of the Division I-A teams, and eighty-four percent of the undefeated regular seasons.

 

Non-BCS teams should not be punished when they have undefeated seasons. This punishment was seen recently in 1998 and 1999, when Tulane University and Marshall University, respectively, went through their entire season undefeated and were still denied access to a BCS bowl. In addition, the average record per conference is rather similar. For example, the average record in the 2001-2002 season for a Big 12 school was 7-5, while the Big 10 and non-BCS Mountain West Conference (MWC) were both 6-6.[135] At worst, the MWC averages one  [*117] less victory than the best BCS conference, but this one additional loss should not be significant enough to prevent access to a BCS game.

 

Non-BCS teams are also prevented from entering the BCS through preseason polls, because these polls are consistently biased toward BCS teams[136] and are detrimental to teams not ranked before the season. To qualify for a BCS spot, a team must be rated high in both polls and by not being ranked in the preseason, a team is therefore barred from National Championship consideration.[137]  For example, despite an undefeated season, Marshall and Tulane both were prevented from playing in BCS bowl games because they began the season unranked.[138]  The fate of a product should not be determined prior to its introduction into the market. Each football team should be given the same opportunity to play in the National Championship each year based on how that team played in each game of the current season. Prior records should have no bearing on present circumstances. Though a previously successful product has earned a particular name in the market, this name does not guarantee its continued success.

 

Because of these factors, access to a BCS game for a non-BCS team is nearly impossible. For example, toward the conclusion of the 2001 season, BYU was 12-0, with one game remaining in the regular season. Despite being one of two undefeated teams, ranked 6th in the AP and ESPN/USA Today Coaches Poll, and 12th in the BCS poll, the BCS intentionally eliminated BYU from BCS consideration regardless of the outcome of their season finale. During the 2001 season, BYU played fourteen games with eight coming on the road. Both statistics were the highest in the NCAA.[139]  Although BYU eventually lost their final regular season game against the University of Hawaii, and lost to the University of Louisville in the Liberty Bowl, the fact that “some blazer-wrapped bowl “scout’“ barred BYU from the BCS proves that non-BCS teams are  [*118]  boycotted from BCS contention.[140] “A football champion should be a team that has won football games, not computer games or accident-of-birth games or smoked-filled-room games. The Bowl Championship Series simply gives a free pass into the finals to two teams with which it has a business relationship.”[141]

 

One major problem with restricting the access of non-BCS teams is the financial deficit in not participating in a BCS organized game. Because of the BCS’s guaranteed millions to BCS teams, in the past two years, BCS conferences have received $ 263,900,000.[142]  If divided evenly between all sixty-three BCS teams, each BCS team roughly received $ 2,308,730 per year from their conference participating in a BCS game.[143]  The non-BCS conferences received only $21,550,000 in the past two years, which equates to about $ 199,537 per non-BCS team per year.[144] Therefore, a BCS team receives over $ 2.1 million more per year than a non-BCS team, no matter what their record is, just for being part of a BCS conference. “Since the BCS payout deficit averages $ 2,100,000 per year ... that works out to roughly $ 8,400,000 deficit per non-BCS team.”[145]  With an average deficit of $ 8,400,000 per non-BCS team, these fifty-four teams have received a total $ 420,000,000 less than BCS schools in the past four years.[146]

 

Because of the BCS, many states have a significant financial deficit with respect to money given to football teams. For example, in total, the non-BCS schools in Texas and Ohio have each lost nearly $ 55.5 million [*119] over the past four years. Other significant losses are seen in Louisiana, Michigan, California, Tennessee, Utah, Florida, and Alabama.

 

By intentionally excluding certain teams and conferences from the guaranteed structure of the BCS, non-BCS schools are greatly disadvantaged. The disparity in the revenues received by the BCS and non-BCS conferences creates an insurmountable obstacle to overcome. The lack of financial balance significantly affects the talent each team can recruit, the amount of additional money needed for facilities, improvements, and the potential salary of a coach. In addition, the financial differences will lead to decreased output of all NCAA college football.

 

As seen above, the BCS has significantly hindered the access to a BCS game, specifically the market for the National Championship game by creating artificial barriers of entry. Under the current system, a non-BCS team can never be admitted to a BCS game. Without adequate access, the BCS boycotts nearly fifty percent of all NCAA Division I-A teams. The BCS is intended to benefit only the BCS conferences and BCS teams, while restricting all non-BCS conferences and non-BCS teams. Under this analysis, the BCS arguably fails.

 

   B. Rule of Reason Analysis

 

The BCS also fails under the rule of reason analysis. Although the BCS will attempt to refute anticompetitive effects by arguing the benefits of their National Championship game, this neither compensates for the loss of competition among the non-BCS teams, nor is the BCS system the least restrictive means of accomplishing that presumed benefit.

 

   1. Anticompetitive Effects

 

Under the rule of reason, courts first require the plaintiff to show significant anticompetitive effects, which are injuries to consumers from an “increase in the market power that the targeted agreement creates for its participants by reducing or eliminating the competition among them.”[147] These injuries are usually in the form of prices above competitive levels or lower than competitive output or quality of the product.[148]  Because of the BCS, the injury in college football is the reduction of output and quality of both regular season and post-season games.[149]

 

[*120]  The injury to college football by the BCS system is most felt by the non-BCS conference teams. First, recruiting in these conferences suffers. Since there is unequal opportunity for participation in the BCS, each team in the “six participating conferences know that every year, they will have at least one representative, if not two, in the most prestigious bowl games, playing during the most visible times of the holiday season, guaranteeing conference exposure.”[150]  This guaranteed exposure gives the BCS conference teams additional leverage for recruiting higher rated high-school players who want to benefit from the potential exposure of a BCS game. Coaches from non-BCS conferences cannot offer such exposure. This obvious recruiting advantage becomes a self-fulfilling prophecy - “the teams outside of the agreement will not be going to prestigious bowls because they are not as good, but the reason they will not be as good will be due to the system that the teams in the BCS imposed upon them.”[151] This recruiting issue was evident in the 2002 recruiting class when only one non-BCS school had a top twenty-five recruiting class, which was BYU with a rank of twenty-two.[152]

 

Second, the BCS creates financial injuries to all non-BCS schools. As previously explained, with an extra $ 2 million per year, BCS schools are able to provide better facilities, equipment, and coaches. Unlike BCS teams, non-BCS teams often lose money by attending non-BCS bowls. The money received through conference sharing rarely covers the costs of participating in these non-BCS bowl games. Teams lose money when they fail to sell a required amount of tickets and are sometimes not able to cover the travel costs associated with the bowl games.

 

During the 2001 season, BYU participated in the Liberty Bowl in Memphis, Tennessee. BYU received “a travel subsidy of $ 698,550 to cover its Liberty Bowl expenses.”[153] As Val Hale, BYU’s athletic director said, ““if we don’t sell the tickets, we lose money.’“[154]  BYU was required to sell 8571 tickets, at $ 35 apiece just to break even. But, BYU only sold roughly 5500 tickets, requiring BYU to owe nearly $ 100,000 to the Liberty Bowl just to play the game. With such an insignificant bowl payout and conference share, BYU lost money by participating in a bowl game. But, when conferences receive a guaranteed $ 14 million from a [*121]  BCS bowl game, all bowl bound teams are eventually able to cover their travel expenses and still make a profit. As Hale stated, “Unfortunately in our conference, we don’t have that money.”[155] 

 This widening gap of those profiting and those who are not is forcing teams not in a BCS conference into second tier status.

 

The section of Division I-A college football into two tiers will continue to decrease competition and detract “from the quality of the overall product for consumers.”[156]  There are two major products derived from Division I-A football. The first product is the regular season games. The market of college football is unique since “consumers of college athletics are to a great extent motivated by emotional loyalty to a particular school.”[157]  Though many fans are drawn to any game between two powerful football teams, most fans are only interested in a specific college “because they are personally affiliated with one of the schools or because a team is affiliated with local or regional college.”[158]  As Professor Gary Roberts suggested, “many fans of the University of Cincinnati football team are not interested in Florida State’s team even if it is the best team in the country.”[159]  Because of this unique character, college football is a very different product and impossible to replace. If the BCS cartel continues, the financial gap will continue to widen and many colleges will be required to drop football all together. “Since every Division I-A team generally plays 11 or 12 games per year, for every school that drops football, there is a decreased output of approximately six [home] games available for consumers every year.”[160]  This drop of college football teams will be an obvious drop of quality and output since “loyal fans of the affected school will have a poorer or no team to follow.”[161] Furthermore, this disparity may decrease the number of all non-BCS games, thus reducing the overall product quantity of Division I-A football.[162]

 

Financial disadvantages to the non-BCS football teams also affect other university sports. Football, “on average, accounts for two-thirds of schools’ athletic revenues in the NCAA Division I-A.”[163]  The loss of [*122]  college football will be the loss of all sports at many NCAA Division I-A schools. With the loss of Division I-A football, the number of students would be reduced, along with tickets sales, and the amount of alumni donations. Entire universities could collapse without financial benefits of college sports. This potential loss is unacceptable, but is a possible outcome of the BCS.

 

The second major product is the National Championship game. The pinnacle achievement of a team in college football is to be declared the Division I-A National Champion. Without the sponsorship of the NCAA, any group competing against the BCS cannot feasibly claim the NCAA Division I-A championship. Any attempt to crown a National Champion out of the remaining non-BCS teams would be moot and would not receive acceptance by the NCAA, the national media, or the majority of the NCAA Division I-A teams. The only realistic proposal is to modify the current system by reducing all anticompetitive restrictions and benefits. These alternatives will be discussed later under the less restrictive alternatives section of this Article.

 

   2. Procompetitiveness of the BCS

 

Sufficient anticompetitive effects cause the burden of proof to shift to the BCS to argue any procompetitive effects. One argument is that a National Championship is guaranteed, which increases interest and overall revenues. The BCS indeed creates a product very popular with consumers of college football that was not available through the traditional bowl format, and “this popular product is the so-called “National Championship game.’“[164]  In addition to the one National Championship game, the BCS claims to produce three other highly touted bowls that provide excitement for coaches, players, and fans alike.

 

The BCS argues the overall interest in college football and college football bowl games have increased, thus increasing the financial benefits to all NCAA Division I-A teams. This argument is a farce, as the ratings for the four 2002 BCS bowl games dropped an outstanding twenty-two percent from the previous year,[165] the lowest rating ever for either the BCS or the Bowl Alliance.[166]  According to ABC Sports, the BCS National Championship game between Miami and Nebraska drew  [*123]  only a 13.8 national rating.[167]  “After peaking with a 15.7 rating from 8:30-9:30 p.m. EST, viewership dropped to 13.6 from 9:30-10 p.m., and continued downward until the game ended.”[168]  This was “22.5 percent lower than the 17.8 for last year’s BCS title game, when Oklahoma beat Florida State 13-2 in the Orange Bowl.”[169] According to Neal Pilson, former president of CBS Sports, with the focus on one championship game, “the public, with its television clickers, seems to have clearly deserted the BCS three non-championship games.” “Only one game has any significance.”[170]  With the focus of the bowl season on only one game, this declining trend was also seen in the three other BCS bowls. The 2002 Orange Bowl between Florida and the University of Maryland garnered only a 9.5 national rating, down 27% from the rating for the 2001 Sugar Bowl pitting Florida against Miami.[171] Likewise, the 2002 “Oregon-Colorado Fiesta Bowl received an 11.3 rating, down 19% from last year’s (the 2001) comparable Rose Bowl.”[172]  Finally, the 2002 Sugar Bowl fell 20% from the previous year’s comparable Fiesta Bowl.[173] That dropped this year’s first three BCS games to a combined overnight rating average of 9.7, twenty-two percent below last year’s 12.6 average.[174] The BCS and ABC were not “helped in 2002 by a series of blowouts, with the four top bowls decided by an average of 22.7 points and all pretty much were won by halftime. Last year, the average margin in those games was 17.5.”[175]  The BCS arguments about increased interest and revenue are misleading. With this year’s lowest rated “National Championship game,” interest and revenues clearly have not been sustained.

 

One reason why the BCS is losing revenues is that it fails to actually match the top two teams in the nation. Recently, there has been heated controversy over which teams should be playing in the National Championship game. At the end of the 2000-2001 year, the BCS placed Oklahoma and Florida State in the Orange Bowl for the championship, despite the fact the Florida State lost to the third-ranked Miami, during the season. Miami was only 0.041 points behind Florida State.[176] This  [*124]  year, the BCS placed Miami in the Rose Bowl against Nebraska, the third ranked team from the Big 12.[177]  Nebraska lost to Big 12 Champion Colorado 62-36,[178] which resulted in Nebraska being ranked fourth by both the media and coaches poll behind Miami, Oregon, and Colorado.[179]  Coaches, sports writers, and fans around the nation argued that Nebraska did not deserve to play for a National Championship since they were unable to win their conference. If, by chance, Nebraska would have beaten Miami, the National Champion would have been split with Oregon, the winner of the Fiesta Bowl.[180] Despite the controversial selection of the Rose Bowl championship teams, Roy Kramer, co-founder of the BCS and former SEC Commissioner, continued to support the BCS. In a radio interview with KOVO, a sports radio station in Provo, Utah, he reiterated that the BCS is not about conference champions, but about the best two teams in college football.[181] Mr. Kramer also stated that even though the BCS might not treat all Division I-A teams equally, no system could or should be fair for all teams.[182]

 

Another possible scenario that would put the BCS in doubt is if the top eight ranked teams in the BCS’s ranking all came from non-BCS conferences. If this happens only the top two teams would play in a BCS bowl game and the next six teams would be barred from participation.[183]  The anticompetitive prong of the rule of reason analysis is violated because 75% of the top teams in a season can theoretically be banned from the top bowl games of the year.

 

Despite the advantage of a potential National Championship game, the anti-competitive results take much more away from the consumer.[184]  Though “the championship game offers an attractive product to the consumers, this product is a direct result of increased market power. The [BCS] substantially strips the economic value of the product through monopoly pricing in order to benefit its own [BCS] members.”[185]

 

    [*125]

 

   3. Less Restrictive Alternatives

 

Though procompetitive effects of the BCS are arguably ineffective and under debate, the burden will probably again shift to the plaintiffs to prove any potentially less restrictive alternatives.

 

The BCS championship is a fiction created by a handful of conferences and games to provide the illusion of a national title, but until their handing out a trophy with the NCAA logo on it, it’s a counterfeit crown. And the sooner people [and the NCAA] realize this, and reject the farce that is the BCS ranking system and the entire bowl structure as it now exists, the sooner we can go to work on creating a real National Championship.[186]

 

There are several different philosophies on how to create an undisputed National Championship without losing revenue or interest. The general alternatives vary from returning to an open market bidding process after the NCAA selecting the top two teams,[187]  non-BCS schools creating their own championship,[188] tinkering with the current BCS ranking system,[189] or establishing some type of playoff system.[190]

 

Based on the recent criticism of the 2002 Championship game between Miami and Nebraska, the BCS is considering altering the usage of computers in the BCS format by either entirely relying upon a mathematical formulation, or eliminating the computers all together.[191]  Commissioners continue to reject any playoff proposition despite being a less restrictive alternative. Even a recent proposal worth $ 3 billion was rejected because of a belief that a playoff would suck the life out of college football.[192]  According to Professor Gary Roberts,

 

If college football’s current system were replaced by a bona fide playoff series, “the 63 BCS conference schools would not be able to hog 93% of the $ 156 million paid out by the various bowls and all of the $ 108 million paid out by the top four BCS bowls. That is why [the BCS conference commissioners] keep extending the TV BCS contracts well into the future, and refuse to let the NCAA football issues committee even discuss a playoff - so that a playoff is never possible.’[193]

           

  [*126]

 

   a. Two Less Restrictive Playoffs Proposals

 

A less restrictive alternative to the BCS is a playoff system. With a playoff, a true National Champion will be determined on the field, and not by a person or computer. Undeniably, fans would be interested in a playoff because more teams are vying for a title, and a playoff would allow fans to follow “Cinderella” teams like those found in the NCAA basketball tournament. The benefits of a playoff are as follows:[194]

(1)   A postseason playoff system that will determine an undisputed National Champion on an annual basis;

(2)   Keeping the same bowl games of today, but utilizing them as playoff sites;

(3)   All bowls, even the minor bowls, would increase gate and television revenue due to the significance of the games and the quality of higher ranked teams;

(4)   All bowls will capture a greater television audience and revenue, because the major bowls will not be competing against one another on January 1st for viewership;

(5)   Schools are less likely to patsy their schedules to guarantee a perfect or near perfect season so that they may play in the (one game) BCS championship at the end of the year. Instead the emphasis will be one of the Top sixteen teams and qualify for the post-season tournament;

(6)   The postseason time frame would not be extended, thus not exceeding the NCAA’s twenty-two week season regulation (the Actual season is twenty weeks);

(7)   It would be easier to obtain and retain quality corporate sponsors for the structured playoff games as television ratings increase significantly;

(8)   The NCAA would receive a substantial increase in revenue to aid all, both male and female, team and individual intercollegiate sports;

(9)   The increase in revenue generated by the playoff structure could be distributed amongst all participating and nonparticipating schools. Even if your Division I-A school never makes it to the tournament, it is still benefiting from the structure. It is a win-win situation for all Division I-A Athletic Programs. Earnings can be distributed proportionally.

 

In considering the conferences, the amount of teams, the additional games to be played, and other factors, a sixteen-team playoff is the most feasible option. Within this playoff, the most important aspect is the selection of the sixteen teams. The crucial factor in selecting teams is treating each team and conference equal. No special privileges can be  [*127]  given to any conference. To reduce any anticompetitiveness, all teams must have the same chance of reaching the playoffs and becoming a National Champion.

 

Under one plan, the eleven conference champions are guaranteed a playoff spot, with the NCAA selecting the “best” five remaining at-large teams.[195] The guarantee of each conference champion, instead of a selected elite few, equalizes the competition and market between conferences. Post-season bowl games will not be chosen by affiliation, but instead will be chosen by merit alone. Perpetual elitist status will no longer be given to conferences and teams. In any given season, every team will have the same chance to win a National Championship. The current philosophy, “hey we’ve been successful over the past several years so we deserve privileged status for this upcoming year” will be eliminated.[196]

 

Another playoff alternative forgoes the automatic selections of conference champions, with only the top sixteen ranked teams being chosen.[197] This selection process treats all teams equally, prevents any unqualified or undeserving conference champion from competing for a national championship, and only selects the nation’s top teams with the best overall weighted record. After the season is over, the top sixteen teams with the most points are invited to the post-season playoff.

 

The determination of either the five at-large or top sixteen teams, depending on which playoff systems is used, must also be free from all bias from any individual or computer. All factors that favor a specific conference or team should be eliminated. The strength of schedule and quality win components, along with the computer rankings are biased towards the current BCS teams. In a perfect system, strength of schedule could be determined by the final rankings in the AP and ESPN/Coaches Poll since any media writer or football coach should take into consideration each team’s specific schedule and wins over ranked opponents. Other factors, like margin of victory, number of games played, weather conditions, traveling, and injuries should also be considered. But unfortunately, the ESPN/USA Today Coaches Poll and AP Poll are also extremely biased and a new ranking system has to be created.

 

    [*128]

 

   b. Creating a New Ranking System: The Hales Ranking System

 

This new ranking system should be exclusively based on a team’s ability that particular season. With such a limited amount of information, the best way to determine a team’s ranking is factoring a team’s amount of wins and the number of wins of each defeated opponent. Under this ranking system, each team will get three points per victory, plus one point for every win of an opponent that they defeated. In the following weeks, for each additional victory the opponent earns, each other team that beat that opponent will also earn one point. Under this system, each team starts out with zero points, and the final ranking is based on each team’s victories over quality opponents. To guarantee as much equality as possible, each team should play the exact same amount of regular season games, possibly ten or eleven. If a team chooses to play a Division I-AA team, the I-A team will receive three points for a victory, but will not receive points for each win of that Division I-AA team. Although, each Division I-A team that beats any team with a victory over a Division I-AA will earn that respective point. This same system will also apply to preseason games.[198]

 

Indeed this ranking system is not perfect. One concern is that an undefeated team still might not be highly ranked if every team they beat failed to win a game. For example, if Syracuse University finished with a record of 11-0 with all wins against winless teams (thirty-three points), they would be ranked lower than a 6-5 Washington State University with wins against six teams with three wins each (thirty-six points).[199] Though under the first playoff system, by having an undefeated season, Syracuse would have won the Big East Conference and would have received an automatic bid to the playoff.[200]  If Syracuse was independent, no automatic bid would be rewarded, and they probably would not have enough points to reach the playoffs. But, if effectively evaluating each team is the purpose of this ranking system, victories over winless teams fails to provide adequate measurement.

 

This ranking places the greatest weight on the number of each team’s victories, specifically benefiting those teams that beat teams with  [*129] more victories while hindering those teams that beat teams with less victories. Though the ranking will not be effective in determining a ranking during the first half of the season, the outcome is all that is relevant. Under the first playoff alternative, the conference champions and the five “at large” teams are seeded 1-16 by their Hales rank, with the top rated team playing Number 16, Number 2 playing Number 15, and so forth.[201]  Under the second playoff alternative, the top sixteen teams are seeded 1-16.[202]  The victor of each round moves on to play the next round, until two teams played their way to the National Championship game.

 

This new ranking system will base each teams “ranking” solely on their performance on the field, and will likewise produce the true National Champion under a less restrictive means. There will be no individual biases of teams, coaches, or sports writers, no complaining about quality of opponents, no prejudicial pre-season rankings, no conference favoritism, and no anticompetitive issues.

 

   c. Analyzing the Concerns of a Playoff

 

Although a playoff would be extremely beneficial, it does have a negative side. The first concern is that a playoff will not guarantee a match-up of the “top two teams in the nation each year, since upsets might commonly allow a lower-ranked team to advance over a higher-ranked opponent in the playoff.”[203]  A playoff does not assure a title game between the two highest rated teams, but as with every other high school, collegiate, and professional sport, a playoff “exemplifies basic fairness and open competition.”[204]  With a playoff, interest is increased because of the “underdog,” or Cinderella stories often seen in college basketball, e.g., Villanova University and North Carolina State University.[205]  But, under the current football system, “there can be no Cinderella stories.”[206]   [*130]  However, with a “16-team playoff, unsung teams would be afforded the opportunity to go toe to toe with college football’s

 elite.”[207]

 

The second concern with creating a playoff is the potential elimination of several bowls and their revenue. With a playoff, the current bowls could easily be converted into regional playoff locations.[208]  With the majority of current bowls hosting playoff games, the current BCS Bowls will generate more money and the non-BCS Bowls would earn more revenue. Under the current bowl format, only one bowl game determines a National Champion. Under a playoff, fifteen games would be needed to decide a champion. Since each playoff game would be important, interest and revenue would substantially increase. If additional bowl games occur outside the playoff system for non-playoff teams, then these bowl games would have the same level of interest and production that non-BCS bowl games currently create, thus no output would be lost.

 

Additionally, the creation of a playoff may result in disinterest in the regular season. This concern is ridiculous. A playoff under the Hales Ranking System would significantly increase the level of interest of each regular season game. Not only will each fan be concerned with their particular team’s record, but fans will become interested in the games of each team that their team defeated. With this overall increase in the interest in the college football season, revenues would drastically increase.

 

A further concern with forming a playoff is the creation and scheduling of additional games. In addressing the amount of games, the concern is that the burden will be on the players and teams. Despite this concern, any playoff would not impose an excruciating burden on any team. “If you truly limit everyone to 11 games and install a playoff system, there would be eight teams finishing with 12 games, four playing 13 games, two playing 14, and two playing 15.”[209] BYU has successfully completed fifteen and fourteen game schedules, Fresno State University has played fourteen games, and several teams have finished with twelve games. Because fewer and fewer teams are playing more than an eleven-game season, the concern of an extended season is unwarranted.

 

The final concern associated with additional games is the potential scheduling conflict with college finals and the oncoming NFL playoffs.  [*131] With most college football seasons starting in the last weekend in August and ending in the first weekend in December, fifteen weeks are provided to play the regular season. If each team is limited to eleven games, that provides four extra weeks throughout that time. If each team is only given a maximum of two bye-weeks,[210] and the regular season concluded on the third weekend in November, there is ample time to schedule additional playoff games. Within this time frame, there are several ways to schedule a playoff. One example is to play the first two rounds on the last weekend in November and the first weekend in December and then take off two weeks for finals, and play the final two rounds on the last weekend in December and the first weekend in January. To keep the tradition of a New Year’s Day bowl game, the schedule could be adjusted to hold the title game on January 1st, with the third round of playoffs a week or ten days before. This would still provide ample time for school while avoiding a conflict with the NFL schedule. From the end of August to the beginning of January, there are about twenty weeks to successfully schedule an eleven-game regular season and four-round playoff. At the most, fifteen games will be played in twenty weeks.

 

Despite these concerns, the major obstacle in creating a playoff is the abandonment of the BCS. The BCS conference teams will not enthusiastically give up their elite status and guaranteed millions of BCS money. The only way for the BCS to be dethroned is action from the NCAA or the court system.

 

No matter how any playoff system is organized, the NCAA must regulate and control the NCAA post-season. With a standardized playoff organization sponsored by the NCAA, “you won’t have the current situation where teams are frequently selected not because of worth, but because they “travel well,’ which is to say brings lots of fans who spend money, or are good for the ratings.”[211]  The NCAA professes that its goal is to administer National Championships.[212] The administration by the NCAA is vital to the success of any alternative. Any private organization has the potential to become corrupt, like the BCS. The BCS is a cooperation of six conferences that operate to financially benefit those six conferences while financially destroying all other conferences.

 

To maintain the competitive balance of college football, all money generated should be distributed among all Division I-A teams, in order to prevent the expanding deficit currently created by the BCS. Although money can be proportionally distributed by the success of the team and  [*132]  conference in the playoff, “in an industry where the quality and quantity of the output depends on maintaining athletic competitive balance across the industry, it is crucial that revenues be distributed in a manner that allows all teams to remain

 able.”[213]

 

   IV. Conclusion

 

The BCS undermines the fundamental values of intercollegiate athletics, the education of amateur student-athlete, and accelerates and magnifies perverse commercial motivations. The BCS hinders the production and competition of a significant portion of Division I-A football teams and the NCAA as a whole. Though each team does not in reality have equal talent and ability, the market must be open for each team to compete despite these differences. Because of arrogance and bias, barriers to entry have created financial gaps within the market of college football to such an extent that productivity is threatened. Under both the per se and rule of reason analyses, the BCS violates antitrust law.

 

Instead of the BCS, a less restrictive alternative is to create a sixteen-team playoff under a new ranking system that only uses each team’s wins and the accumulation of wins by each team’s defeated opponent. This system provides a more productive and competitive market for college football.

 

    [*133]

 

Appendix A:

Playoff Proposal #1 -

Playoff with All Conference Champions

 

[SEE CHART IN ORIGINAL]  [*134]

 

Appendix B:

Playoff Proposal #2 -

Playoff with the Top 16 Hales Ranked Teams

 

[SEE CHART IN ORIGINAL]